Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1983)

MEMORANDUM^* 

Plaintiffs-Appellants Marine Power and Equipment, Inc. (Marine Power), and National Union Fire, appeal from the judgment of the Benefits Review Board (Board) which affirmed the decision and order of Administrative Law Judge Butler. The Administrative Law Judge held Marine Power, rather than Lockheed Shipbuilding & Construction Company (Lockheed), responsible for injuries claimant Bruce Whitmore sustained at work. Marine Power and its insurer, National Union Fire, seek reversal on the following grounds: (1) the Administrative Law Judge did not independently review the evidence; (2) the Administrative Law Judge's finding that Whitmore's disability was the result of the natural progression of an injury he sustained while working at Marine Power is not supported by substantial evidence; and (3) Lockheed did not meet its burden of rebutting the 33 U.S.C. § 920(a) presumption.

We disagree and affirm.

FACTS

In 1982, appellee Bruce Whitmore was employed at Marine Power and Equipment Company as a marine electrician. On Friday, March 19, 1982, while working for Marine Power, Whitmore fell off a ladder and injured his back. He was taken to the emergency center at Ballard Hospital. After examination, he was released that same evening. Whitmore rested at home over the weekend and returned to work the following Monday.

On April 5, 1982, Whitmore again suffered a lower back injury when he stepped into an uncovered manhole in the engine room of the vessel on which he was working. Approximately fifteen to twenty minutes later, when Whitmore turned to shove a cable into a connection in the engine room, he experienced pain in his lower back which he described as "electric shocks" and spasms. Whitmore could not straighten up. Whitmore was taken to Northgate Hospital and placed under the care of Dr. Aik-Woo Ng. At Northgate Hospital, Whitmore underwent treatment until April 10, 1982, consisting of traction, hot and cold packs, anti-inflammatory drugs and physical therapy.

On April 28, 1982, Whitmore was examined by Dr. Kvidera, an orthopedic surgeon, who determined Whitmore probably had a nerve root irritation, due to a bulging herniated nucleus pulposus, which was being resolved with conservative care. Dr. Kvidera felt Whitmore would be able to return to work in four to six weeks. Whitmore received temporary total disability benefits until May 27, 1982. On May 28, 1982, Whitmore commenced work at Lockheed Shipbuilding Company as a marine electrician.

At the request of National Union Fire, Whitmore was reexamined on September 22, 1982 by Dr. McDermott, an orthopedic surgeon. Whitmore told Dr. McDermott that he was still experiencing back pain which sometimes radiated to his left leg. Dr. McDermott diagnosed Whitmore's condition as acute and chronic lower back strain with probable left L-5 root syndrome with some evidence of sciatic nerve irritation. Since Whitmore seemed willing to live with his condition and because Dr. McDermott felt there had been continued improvement with rehabilitative effort, Dr. McDermott recommended closure of the claim and rated Whitmore for a five percent partial disability.

On December 30, 1982, Whitmore was unable to perform his duties at Lockheed because he experienced pain with radiation down the lower left side of his body when he performed a "bending" maneuver. On that date, he was examined by Dr. Pedegana, an associate of Dr. Kvidera. Dr. Pedegana noted that Whitmore's symptoms were similar to those he had experienced eight months earlier. Dr. Pedegana recommended complete bed rest pending a follow-up exam by Dr. Kvidera.

On January 4, 1983, Whitmore was reexamined by Dr. Kvidera. Dr. Kvidera concluded that Whitmore's most recent episode had not been secondary to a specific trauma, but rather to twisting, bending maneuvers. Dr. Kvidera further opined that Whitmore had radicular pain in his left leg which was consistent with his condition in April 1982.

Marine Power, through its insurance carrier, filed a notice of controversion on January 7, 1983. Marine Power objected to payment of compensation, claiming Whitmore aggravated his back injury at Lockheed. Lockheed also refused to authorize treatment, claiming Whitmore's back problems were directly traceable to the injuries he sustained at Marine Power.

On May 2, 1983, Whitmore filed a claim against Lockheed for permanent benefits as the result of an industrial injury occurring in December of 1982. Lockheed refused to provide medical treatment on the ground that Whitmore's current condition resulted from the injury that occurred at Marine Power.

A hearing was held before Administrative Law Judge James J. Butler. The Administrative Law Judge found that Whitmore's disability was the result of the back injury he suffered in April 1982 while working at Marine Power. The Administrative Law Judge held that Marine Power was liable for Whitmore's temporary total disability.

Marine Power appealed from the Administrative Law Judge's decision to the Benefits Review Board. The Board affirmed holding it was rational and supported by substantial evidence. Marine Power appeals from the Board's decision.

DISCUSSION

Marine Power contends that the Administrative Law Judge adopted the proposed findings of fact and conclusions of law offered by Whitmore's counsel without change, in violation of Marine Power's right to an independent review of the evidence.

Marine Power failed to raise this issue in its petition for review before the Benefits Review Board. In its petition for review, under the heading "Procedural Background," Marine Power stated: "The Decision and Order tendered by the administrative law judge in this case is the mirror image of the proposed decision and order submitted by claimant." Marine Power does not argue that the Administrative Law Judge failed to conduct an independent review of the evidence. We have held that absent " 'exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative proceeding at the appropriate time.' " Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 644 F.2d 827, 832 (9th Cir. 1981) (quoting Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir. 1979)). Because Marine Power has not stated any exceptional circumstance that would excuse the failure to present this issue to the Benefits Review Board, we decline to review it.

Marine Power contends that the Administrative Law Judge's finding that Whitmore's disability was the natural progression of an injury sustained at Marine Power is not supported by substantial evidence. Marine Power argues that the record shows that Whitmore's disability resulted from the aggravation of an injury that occurred at Lockheed. The answer to this contention depends on whether the disability to Whitmore was the natural progression of the injury he sustained at Marine Power, or instead, an aggravation of the injury he sustained at Marine Power, occurring at Lockheed, making Lockheed responsible.

In Kaiser Steel Corp. v. Director, Office of Workers' Compensation Programs, 812 F.2d 518, 521 (9th Cir. 1987), we explained the standard of review for decisions of the Benefits Review Board as follows:

This court reviews Board decisions for errors of law and for adherence to the statutory standard governing the review of an ALJ's factual determinations. Long v. Director, OWCP, 767 F.2d 1578, 1580 (9th Cir. 1985). By statute, the Board must accept the ALJ's findings if they are supported by substantial evidence. 33 U.S.C. § 921(b) (3). The Board's interpretation of the Longshore Act is not entitled to any special deference. Long v. Director, 767 F.2d at 1580. This court has, however, indicated that it will respect the Board's interpretation of the Longshore Act "where that interpretation is reasonable and reflects the policy underlying the statute." Id. (quoting National Steel and Shipbuilding Co. v. United States Department of Labor, 606 F.2d 875, 880 (9th Cir. 1979)).

Under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, if a work-related injury combines with, contributes to, or aggravates a pre-existing condition, the resultant condition is compensable by the current employer. Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1334-35 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). A former employer is liable for a subsequent injury sustained by the worker if it is the natural or unavoidable result of the prior, work-related injury, if progression of the condition has not been worsened by an independent intervening cause. Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 456-57 (9th Cir. 1954).

The Administrative Law Judge in the instant case concluded that "there is substantial evidence in the record as a whole to indicate that the claimant's condition and disability resulted from the natural and unavoidable results of the March 19 and April 5, 1982 injuries, and that said condition and disability would have occurred notwithstanding the events occurring in December, 1982." The Administrative Law Judge also found "that the injuries suffered at Marine Power and Equipment, Inc. were characterized by flare-ups of a continuing episodic nature, of varying temporary duration, in and outside the course of employment, without any change in the underlying pathological condition."

Substantial evidence has been defined as more than a mere scintilla, or that quantum of evidence that "a reasonable mind might accept as adequate to support a conclusion." American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522 (1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). Substantial evidence supports the Administrative Law Judge's findings. Dr. McDermott, who examined Whitmore at the request of Marine Power's insurer, National Union Fire, indicated that "with respect to the responsibility of this claim on a medical basis, I am unable to report to you any facts other than the history as noted." During this visit, Whitmore stated that his back continually bothered him, and there was progressive deterioration until the time he re-visited Dr. Kvidera. When Dr. Pedegana examined Whitmore on December 30, 1982, he noted that Whitmore's symptoms were similar to those he had shown in April, 1982. On January 4, 1983, when Dr. Kvidera reexamined Whitmore, he noted that Whitmore's most recent episode of back problems "has been secondary to no specific trauma."

Marine Power argues that both Dr. McDermott and Dr. Kvidera use the term "aggravation" in their reports. However, as Judge Butler noted in his Decision and Order, while Dr. Kvidera used the term "aggravation," he also opined that Whitmore's current back problem stems from his injuries at Marine Power. Whitmore testified that after his last injury at Marine Power, his back continued to hurt him, was constantly sore, and that bending, stooping, twisting and lifting always bothered him. This evidence is sufficient to satisfy a reasonable mind that Whitmore's condition and disability resulted from the injuries he incurred while employed at Marine Power.

Marine Power also contends that Lockheed did not meet its burden of rebutting the presumption that " [i]n any proceeding for the enforcement of a claim for compensation under this chapter ..., in the absence of substantial evidence to the contrary ... the claim comes within the provisions of this chapter." 33 U.S.C. § 920(a).

Marine Power did not raise this issue in its petition for review before the Benefits Review Board. As previously stated, absent " 'exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative proceeding at the appropriate time.' " Duncanson-Harrelson Co., 644 F.2d at 832 (quoting Getty Oil Co., 607 F.2d at 256). Marine Power has not stated any exceptional circumstances that could excuse the failure to present this issue to the Benefits Review Board. Accordingly, Marine Power has failed to preserve this issue for review.

CONCLUSION

The decision of the Benefits Review Board is affirmed.